Case Could Overturn NLRB Precedent Allowing Employers To Ban the Use of Company E-Mail for Union Messages

The NLRB will hear an appeal that could overturn NLRB precedent that allowed employers to ban employees from using company e-mail for union purposes.  The NLRB established this rule during the Bush Administration in Register Guard.  In Register Guard, the NLRB permitted employers to prohibit employees from using company e-mail for union purposes even when the employer does not have a company policy banning all non-work related messages through company e-mail.  

An Administrative Law Judge recently followed Register Guard in Purple Communications, Inc., which the NLRB Office of the General Counsel is now appealing.  In its appeal with the charging party Union represented by Weinberg Roger & Rosenfeld, the General Counsel argues that employees have a Section 7 right to use company e-mail as concerted activity to improve wages, hours, and the terms and conditions of employment. 

The NLRB has invited amici (friends of the Board) to file briefs on this issue.  In addition to inviting briefs on the issue at the heart of Purple Communications and Register Guard, it invites briefs on the following questions:

  • Do employee personal electronic devices (e.g., phones, tablets), social media accounts, and/or personal email accounts affect the proper balance to be struck between employers’ rights and employees’ Section 7 rights to communicate about work-related matters?  If so, how?

 

  • Identify any other technological issues concerning email or other electronic communications systems that the Board should consider in answering the foregoing questions, including any relevant changes that may have occurred in electronic communications technology since Register Guard was decided.  How should these affect the Board’s decision?

As employees in the modern workplace communicate more frequently through electronic means, the NLRB’s decision in Purple Communications could have a profound impact on allowing employees to effectively engage in collective action to improve their working conditions.

We will keep you updated as Purple Communications progresses.

By Anthony Tucci | May 19, 2014

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